Registration No. 333-_________
As filed with the U.S. Securities and Exchange Commission on December 31, 1997
U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
MEDIQ Incorporated
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(Exact name of registrant as specified in its charter)
Delaware 51-0219413
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
One MEDIQ Plaza
Pennsauken, New Jersey 08110
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(Address of Principal Executive Offices) (Zip Code)
MEDIQ Incorporated 1997 Stock Option Plan
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(Full title of the plan)
Alan Einhorn, Esq.
General Counsel
MEDIQ Incorporated
One MEDIQ Plaza
Pennsauken, New Jersey 08110
(609) 662-3200
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(Name, address, telephone number, including
area code, of agent for service)
Copies to:
F. Douglas Raymond, III, Esq.
Drinker Biddle & Reath LLP
1345 Chestnut Street
Philadelphia, PA 19107-3496
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<TABLE>
<CAPTION>
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CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------------------
Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of
to be Registered Registered(1) Offering Price Per Aggregate Offering Registration Fee
Share(2) Price(2)
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par 431,125 $8.0625 $3,475,945.32
value $1.00 per 8,000 $8.125 $ 65,000.00
share 460,875 $11.09375 $5,112,832.04
- ------------------------------------------------------------------------------------------------------------------------
TOTAL 900,000 $8,653,777.36 $2,552.87
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</TABLE>
(1) Pursuant to Rule 416(a), this Registration Statement also covers an
indeterminate number of additional shares as may become issuable under the
1997 Stock Option Plan in connection with share splits, share dividends or
similar transactions.
(2) Calculated pursuant to Rule 457(h) solely for the purpose of calculating
the registration fee. As to shares subject to outstanding but unexercised
options, the price and fee are computed upon the price of which such
options may be exercised. As to remaining shares, the price and fee are
computed based upon the price at which such options may be exercised. As to
remaining shares, the price and fees are computed based upon $11.09375, the
average of the highest and lowest selling prices of the Registrant's Common
Stock on December 29, 1997 as reported by the American Stock Exchange.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
(Not required to be filed as part of this Registration Statement)
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents which have been filed by MEDIQ Incorporated (the
"Registrant" or the "Company") with the Securities and Exchange Commission (the
"Commission") are incorporated by reference into this Registration Statement:
(a) the Annual Report on Form 10-K for the fiscal year ended September 30,
1997 filed on December 23, 1997;
(b) the description of the Company's Common Shares contained in the
Registration Statement on Form 8-A dated June 8, 1993 and filed on June 10, 1993
by the Company under the Securities Exchange Act of 1934, including any
amendment or report filed for the purpose of updating such description; and
(c) all other reports filed pursuant to Sections 13(a) or 15(d) of the
Securities Exchange Act of 1934 since December 23, 1997.
All reports and other documents filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 after the date
of this Registration Statement, but prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of filing
of each such report or other document.
Item 4. Description of Securities
Not Applicable.
Item 5. Interests of Named Experts and Counsel
Not Applicable.
Item 6. Indemnification of Directors and Officers.
The Company has adopted the provisions of Section 102(b)(7) of the Delaware
General Corporation Act (the "Delaware Act") which eliminate or limit the
personal liability of a director to the Company or its stockholders for monetary
damages for breach of fiduciary duty under certain circumstances. The Delaware
Act generally does not eliminate or limit the liability of a director in certain
circumstances, including for any breach of the director's duty of loyalty to the
Company or its stockholders for acts or omissions not in good faith or that
involve intentional misconduct or a knowing violation of law or for any
transaction from which the director derived an improper personal benefit.
The Company's By-Laws generally provide for the indemnification of the
Company's directors, officers, employees and agents to the full extent
authorized by Delaware General Corporation law against expenses and various
other costs incurred in connection with any legal action if he or she acted in
good faith and in a manner he
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or she reasonably believed to be in the best interests of the Company, and, with
respect to criminal actions, had reasonable cause to believe his or her conduct
was not unlawful. The Company's By-Laws also provide for indemnification of
directors, officers and employees under certain circumstances in the case of
third-party and derivative actions. The Company may advance an indemnified party
certain expenses incurred in defending an action, which must be repaid by the
individual if it is ultimately determined he or she is not entitled to
indemnification. The Company has purchased directors and officers liability
insurance insuring its directors and officers against liabilities incurred in
their capacities as directors and officers.
The Company's 1987 Stock Option Plan (the "1987 Plan") provides that
the Company will indemnify and hold harmless each member of the 1987 Plan's
Committee and each other Director or employee of the Company to whom any duty or
power relating to the administration or interpretation of the 1987 Plan has been
delegated, against any cost or expense (including counsel fees) or liability
(including any sum paid in settlement of a claim with the approval of the
Committee) arising out of any act or omission in connection with the 1987 Plan,
unless arising out of such person's own fault or bad faith.
The Company's 1997 Stock Option Plan (the "1997 Plan") provides that the
Company will indemnify each member of the 1997 Plan's Committee and each
director against all costs and expenses reasonably incurred by them in
connection with any claim, action, suit or proceeding to which they or any of
them may be a party by reason of any action taken or failure to act under, or in
connection with, the Plan, or any option granted thereunder, and against all
amounts paid by them in settlement thereof (provided such settlement is approved
by legal counsel selected by the Company) or paid by them in satisfaction of a
judgment in any such act or, suit, or proceeding, except a judgment based upon a
finding of willful misconduct or recklessness on their part.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
The following exhibits are filed as part of this Registration Statement and
shall supersede the applicable exhibits filed with the original Registration
Statement or any amendment thereto.
Exhibit 4.1 Certificate of Incorporation (incorporated by reference
to Exhibit 3.1 to Annual Report on Form 10-K filed on
January 12, 1996).
Exhibit 4.2 By-Laws (incorporated by reference to Exhibit 3.2 to
Annual Report on Form 10-K filed on January 12, 1996).
Exhibit 4.3 MEDIQ Incorporated 1997 Stock Option Plan (incorporated
by reference to Exhibit 10.7(a) to Annual Report on
Form 10-K filed on December 23, 1997).
Exhibit 5 Consent of Drinker Biddle & Reath LLP (counsel to the
Registrant).
Exhibit 23 Consent of Deloitte & Touche LLP (Independent Auditors).
Exhibit 24 Powers of Attorney -- see Signature Page.
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
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(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement;
(i) To include any prospectus required by Section 10(a)(3) of the 1933
Act;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Securities and Exchange Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in value and price represent no more than a 20%
change in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" Table in the effective registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Securities and Exchange Commission by the Registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the 1933
Act, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(4) That, for purposes of determining any liability under the 1933 Act,
each filing of the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the Exchange
Act) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at the time shall be deemed to be
the initial bona fide offering thereof.
(5) Insofar as indemnification for liabilities arising under the 1933
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the 1933 Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the 1933 Act and will be governed by the
final adjudication of such issue.
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SIGNATURES AND POWERS OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Pennsauken, New Jersey on this 29th day of December, 1997.
MEDIQ INCORPORATED
By: /s/ Jay Kaplan
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Jay Kaplan
Chief Financial Officer
Each person whose signature appears below hereby constitutes and appoints
Thomas E. Carroll or Jay Kaplan as his or her attorneys-in-fact and
agents, with full power of substitution and resubstitution for him or her, in
any and all capacities, to sign any or all amendments or post-effective
amendments to this Registration Statement, and to file the same, with exhibits
thereto and other documents in connection therewith, granting unto each of such
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing requisite and necessary in connection with such matters and
hereby ratifying and confirming all that each of such attorneys-in-fact and
agents or his substitutes may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
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<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ Thomas E. Carroll Chief Executive December 29, 1997
- ------------------------ Officer, Director
Thomas E. Carroll (Principal Executive Officer)
/s/ Jay Kaplan Chief Financial December 29, 1997
- ------------------------ Officer, (Principal
Jay Kaplan Financial and
Accounting Officer)
/s/ Michael J. Rotko Chairman of the December 26, 1997
- ------------------------ Board of Directors
Michael J. Rotko
/s/ Michael F. Sandler Director December 29, 1997
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Michael F. Sandler
/s/ Mark S. Levitan Director December 28, 1997
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Mark S. Levitan
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Sheldon M. Bonovitz Director --
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H. Scott Miller Director --
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Jacob A. Shipon Director --
</TABLE>
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EXHIBIT INDEX
Exhibit No. Description Page
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Exhibit 5 Opinion of Drinker Biddle & Reath LLP,
counsel to the Registrant. 8
Exhibit 23.1 Consent of Deloitte & Touche LLP
(Independent Auditors) 10
Exhibit 23.2 Consent of Drinker Biddle & Reath LLP
(included in Exhibit 5)
Exhibit 24 Powers of Attorney -- see Signature Page
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EXHIBIT 5
LAW OFFICES
DRINKER BIDDLE & REATH LLP
PHILADELPHIA NATIONAL BANK BUILDING
1345 CHESTNUT STREET
PHILADELPHIA, PA 19107-3496
Telephone: (215) 988-2700
Fax: (215) 988-2757
December 29, 1997
MEDIQ Incorporated
One MEDIQ Plaza
Pennsauken, NJ 08110
Gentlemen:
We have acted as counsel to MEDIQ Incorporated (the "Company") in
connection with the preparation and filing with the Securities and Exchange
Commission of the Company's Registration Statement on Form S-8 under the
Securities Act of 1933 (the "Registration Statement) relating to 900,000 shares
of Common Stock of the Company, par value $1.00 per share (the "Shares"),
issuable upon the exercise of options granted under the Company's 1997 Stock
Option Plan (the "Plan").
In this connection, we have reviewed originals or copies, certified or
otherwise identified to our satisfaction, of the Company's Certificate of
Incorporation, its By-Laws, resolutions of its Board of Directors and
stockholders, the Plan, and such other documents and corporate records as we
have deemed appropriate in the circumstances.
Based upon the foregoing and consideration of such questions of law as we
have deemed relevant, we are of the opinion that the issuance of the Shares by
the Company upon the exercise of stock options properly granted under the Plan
has been duly authorized by the necessary corporate action of the Board of
Directors of the Company, and such Shares, upon exercise of such options and
payment therefor in accordance with the terms of the Plan, will be validly
issued, fully paid and nonassessable by the Company.
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The opinions expressed herein are limited to the federal laws of the United
States, and the General Corporation Law of the State of Delaware.
We consent to the use of this opinion as an exhibit to the Registration
Statement. This does not constitute a consent under Section 7 of the Securities
Act of 1933 since we have not certified any part of such Registration Statement
and do not otherwise come within the categories of persons whose consent is
required under said Section 7 or the rules and regulations of the Securities and
Exchange Commission.
Very truly yours,
\s\ DRINKER BIDDLE & REATH LLP
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DRINKER BIDDLE & REATH LLP
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EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of MEDIQ Incorporated (the "Company") and subsidiaries on Form S-8 of our report
dated November 25, 1997, appearing in the Annual Report on Form 10-K of MEDIQ
Incorporated and subsidiaries for the year ended September 30, 1997.
\s\ Deloitte & Touche LLP
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DELOITTE & TOUCHE LLP
Philadelphia, Pennsylvania
December 30, 1997
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